nekom:Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances. - Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

Here's the easy way to understand this. You've got Adam, and he killed Brian. At some point after Adam kills Brian (with no witnesses), Adam is talking to Caleb it goes like this:ADAM: You know, I was involved in some stuff with Brian before Brian died.CALEB: You were there?ADAM: Yeah.CALEB: [other questions about the scene]ADAM: [other responsive answers]CALEB: You know, they're doing ballistics analysis on the gun impacts where Brian was killed. You have a gun, right? Do you think they'll match it to you?ADAM: [first silence of the day]

If Caleb is a private citizen, it is indisputable - and long settled law - that Caleb could come to court and testify to this conversation. It's hearsay, but it's admitted to evidence under the long-standing rule of "Admission Against Interest" (which exists in all US jurisdictions, including federal, in criminal cases).

If Caleb is a police officer, however, it depends. If Caleb has Adam in custody (not even necessarily arrest), then there are more specific questions that need to be answered, because the Court has routinely recognized (and reaffirmed in today's decision) that custody is intrinsically coercive. If Caleb doesn't have Adam in custody, though, then it's no different than if Caleb were not a police officer at all.

Here, 'Adam' went to 'Caleb' voluntarily. He was not detained or arrested. He was free to leave at any time, and hadn't been placed in any restricted situation. Moreover, the questioning was initiated when 'Adam' brought himself to the police. In other words, there was nothing coercive about his circumstances. As a result, it fell under the more general concept of 'admission against interest'.

Moreover, the Court reiterated a principle that has existed since Miranda itself: that to be shielded by the 5th Amendment, you must invoke it. There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer. The court - if you actually read the opinion - lays out all the reasons this limitation has been in place for so long.

elysive:Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong

The ruling is BS, but if you simply make no statement whatsoever under ANY circumstances, you'll be fine.

we have emphasized that one of the Fifth Amendment's "basic functions ... is to protect innocent men ... 'who otherwise might be ensnared by ambiguous circumstances.' " Grunewald v. United States, 353 U.S. 391, 421 (1957) as cited in Ohio v. Reiner. In short, claiming innocence does not invalidate your right to STFU.

elysive:nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances. - Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

/ruling just seems soooo wrong

No; you have no obligation to speak (generally) to the police at all. There are limited exceptions (e.g. you must provide your name at a traffic stop) but those are tied to special circumstances (e.g. that you're driving using a state-issued Driver's License). Giving false information can be a crime (in some states, e.g. here in MD, it's a crime to give a false identity to avoid prosecution, as well as being a crime to file a 'false alarm' with the police to cause alarm, for example).

Moreover, your question is precisely the one answered by this ruling (which, as I note above, doesn't create new law): if you invoke the 5th, then your invocation (and silence) cannot be admitted at trial absent other crucial characteristics. For example, if you're talking freely with the police (but in custody) and suddenly invoke the 5th, it's possible that silence could be admitted (but unlikely). If you're not in custody (as in this case), then you need to invoke the 5th or else your silence most definitely will be admissible.

I'm not giving legal advice, but if you think you might ever want to invoke the 5th in a case, you're better off doing it first and foremost. Otherwise, every word you say to the police endangers the success of your invocation.

mattharvest:Here's the easy way to understand this. You've got Adam, and he killed Brian. At some point after Adam kills Brian (with no witnesses), Adam is talking to Caleb it goes like this:ADAM: You know, I was involved in some stuff with Brian before Brian died.CALEB: You were there?ADAM: Yeah.CALEB: [other questions about the scene]ADAM: [other responsive answers]CALEB: You know, they're doing ballistics analysis on the gun impacts where Brian was killed. You have a gun, right? Do you think they'll match it to you?ADAM: [first silence of the day]

If Caleb is a private citizen, it is indisputable - and long settled law - that Caleb could come to court and testify to this conversation. It's hearsay, but it's admitted to evidence under the long-standing rule of "Admission Against Interest" (which exists in all US jurisdictions, including federal, in criminal cases).

If Caleb is a police officer, however, it depends. If Caleb has Adam in custody (not even necessarily arrest), then there are more specific questions that need to be answered, because the Court has routinely recognized (and reaffirmed in today's decision) that custody is intrinsically coercive. If Caleb doesn't have Adam in custody, though, then it's no different than if Caleb were not a police officer at all.

Here, 'Adam' went to 'Caleb' voluntarily. He was not detained or arrested. He was free to leave at any time, and hadn't been placed in any restricted situation. Moreover, the questioning was initiated when 'Adam' brought himself to the police. In other words, there was nothing coercive about his circumstances. As a result, it fell under the more general concept of 'admission against interest'.

Moreover, the Court reiterated a principle that has existed since Miranda itself: that to be shielded by the 5th Amendment, you must invoke it. There's no magic phrase, but something must be said to indicate that your silence is because you feel it would incriminate you as opposed to just not wanting to answer. The court - if you actually read the opinion - lays out all the reasons this limitation has been in place for so long.

The defendant voluntarily went to the police stationHe chose to speak to the police officersHe was not in custody, and therefore Miranda did not applyHe began speaking about some details but clammed up after police officers asked him about others.

This case is not about Miranda. It is about the right to remain silent and whether you have to affirmatively invoke that right. Total silence is almost always considered invoking the right to remain silent.

This case was about what happens before Miranda, when a person is not in custody. The court held that prosecutors were allowed to mention the defendant's silence during that initial interview when he was not in custody and thus legitimately had not had his Miranda rights read yet. Basically, they said that rather than just being allowed to shut up at random times when talking to authority figures in a non-coercive setting and then later claim you were using the right to remain silent, you have to do something to positively inform the police that you are taking the 5th. Or you could just leave the room too, I guess.

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody. Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.). Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

elysive:nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances. - Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice?

Generally speaking, no, it cannot. If it is custodial interrogation, you have Miranda rights. If merely an interview, you have no obligation to speak to the police. The problem is when being interviewed as a witness morphs into becoming an interview of a suspect. There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.

It's funny how many people will - without being able to articulate why the case is wrongly decided - will feel exactly the joking question you're presenting, but entirely without humor or irony. Just look at this thread (and the redlighted threads before it) for easy examples.

Sometimes people want their anger so bad that they don't bother even trying to explain it.

"Petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege against self incrimination in response to the officer's question. It has long been settled that the privilege "generally is not self executing" and that a witness who desires its protection "'must claim it.'" Minnesota v. Murphy, 465 U. S. 420, 425, 427 (1984) (quoting United States v. Monia, 317 424, 427 (1943)). Although "no ritualistic formula is necessary in order to invoke the privilege," Quinn v. United States, 349 U. S. 155, 164 (1955), a witness does not do so by simply standing mute."

The Court's argument is that according to cases dating back to 1943, there must be some invocation of the Fifth Amendment when the person isn't in custody. Do you dispute that?

The Court's reasoning here is that the suspect wasn't in custody, based on the totality of his circumstances (he wasn't under arrest, he wasn't in a closed/locked room, he was free to leave, he voluntarily brought himself to the police, etc.). Do you dispute that?

The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.

This being FARK, I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand. I love a good con crim pro discussion, but this will get pooped on soon enough when it hits the main page.

Nabb1:There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.

Here, though, he was never interviewed as anything but a suspect. When they arrived at his home, they saw a car matching that of the get-away vehicle for the killer. Before any discussion of substance, the suspect offered to them that he had a shotgun (as had been used in the murder), and gave it over for analysis. There was no 'morphing'. He was always a suspect.

mattharvest:The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

elysive:I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.

As the court explains: custody is inherently coercive, and so absent evidence to the contrary it is assumed that any right you give up while in custody wasn't voluntary. The Miranda rights (and the completion of a Miranda waiver) are evidence of that voluntariness, allowing the statement to be admitted. Here is the Court's explanation of that same concept (in this very decision):

"[W]e have held that a witness' failure to invokethe privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.Thus, in Miranda, we said that a suspect who is subjectedto the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467-468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned." Murphy, supra, at 429-430. "

mattharvest:Nabb1: There's probably no bright line there in every situation, but I think the appropriate thing to do in that context would have been to Mirandize him at the point he clammed up if you wanted to keep pressing the issue.

Here, though, he was never interviewed as anything but a suspect. When they arrived at his home, they saw a car matching that of the get-away vehicle for the killer. Before any discussion of substance, the suspect offered to them that he had a shotgun (as had been used in the murder), and gave it over for analysis. There was no 'morphing'. He was always a suspect.

Nabb1:I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand

Ipso facto, I think that you are prima faciaing all over the establishment clause, ergo post hoctum ad reducto as established in Marbury v. Madison. Ad hoc, my compos mentis and habeus corpus is in flagrante delicto because of the post mortem veto of second amendment jurisprudence. Et tu, Brute.

nekom:mattharvest:The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!

Pocket Ninja:Nabb1: I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand

Ipso facto, I think that you are prima faciaing all over the establishment clause, ergo post hoctum ad reducto as established in Marbury v. Madison. Ad hoc, my compos mentis and habeus corpus is in flagrante delicto because of the post mortem veto of second amendment jurisprudence. Et tu, Brute.

Don't forget, "Scalia is just an originalist when it suits him and Thomas is his lawn jockey, as usual. I bet Thomas didn't even say anything in oral argument!"

This being FARK, I recommend simply scanning the names of the Justices, and base all of your arguments on attacking them without really articulating any coherent legal argument of this particular issue and pepper it with buzzwords you've learned on this and other websites, but don't entirely understand. I love a good con crim pro discussion, but this will get pooped on soon enough when it hits the main page.

elysive:nekom: mattharvest:The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!

The cops knew exactly what they were doing. I'm not sure why this guy chose to start talking in the first place.

nekom:I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

I'd recommend you read this opinion, as it specifically addresses this concern. In short, they explain that (a) this fact has been true at least since the 50s if not the 20s, based on existing case law; (b) the express invocation requirement facilitates the need for the Court (and State) to be aware of the defendant's intent to invoke the Fifth at trial so it can be dealt with. Bear in mind that you cannot invoke the Fifth unless, in fact, it would incriminate you. In other words, it must be verifiable to a certain degree. This prevents, e.g., a witness from refusing to testify just to protect a friend while falsely hiding behind the Fifth (e.g. where you know your friend committed a crime but don't want to admit it).

Here, at length, is their reply:

"That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U. S. 599, 610- 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11."

Moreover, the petitioner himself recognized (through counsel) that existing case law didn't protect him; far from it, he explicitly asked the Court to create a new "general" rule for witnesses remaining silent in this way. They decline to do so quite explicitly.

"We therefore decline petitioner's invitation to craft a new exception to the "general rule" that a witness must assert the privilege to subsequently benefit from it. Murphy, 465 U. S., at 429."

They then proceed to list a number of cases - all still good and binding law - that make it clear no such "general rule" has ever existed, nor can it exist in under Fifth Amendment precedent.

mattharvest:elysive: I guess I'll repeat my question from the other thread...why is the privilege self-executing in the case of Miranda warnings? Why not make people in custody invoke their own Fifth Amendment rights? If its not an inherent right, idiots in custody should have to speak up before shutting up.

As the court explains: custody is inherently coercive, and so absent evidence to the contrary it is assumed that any right you give up while in custody wasn't voluntary. The Miranda rights (and the completion of a Miranda waiver) are evidence of that voluntariness, allowing the statement to be admitted. Here is the Court's explanation of that same concept (in this very decision):

"[W]e have held that a witness' failure to invokethe privilege must be excused where governmental coercion makes his forfeiture of the privilege involuntary.Thus, in Miranda, we said that a suspect who is subjectedto the "inherently compelling pressures" of an unwarned custodial interrogation need not invoke the privilege. 384 U. S., at 467-468, and n. 37. Due to the uniquely coercive nature of custodial interrogation, a suspect in custody cannot be said to have voluntarily forgone the privilege "unless [he] fails to claim [it] after being suitably warned." Murphy, supra, at 429-430. "

I suppose I understand the distinction, but I still disagree with the ruling. Either there as citizens we have the right to silence with the police and the right against self incrimination, or we dont. Fortunately, silence about a gun is a pretty shaky evidence of guilt in my book. Maybe the guy didnt commit the crime but he knew his weapon was used?

If the cops were competent enough to go and retrieve physical evidence, it seems this would have been a non-issue.

Nabb1:The cops knew exactly what they were doing. I'm not sure why this guy chose to start talking in the first place.

A very good question; I suspect (though I cannot know) that it's something along the lines of "No one saw me do it, so if I cooperate they won't realize it was me. Lots of people have dark cars and shotguns".

I think this because he only clammed up when they talked about being able to - via forensics - tie a particular shotgun to particular shotgun shells. Not everyone is aware that this can be done. I think he thought he was in the clear if he didn't given them reason to suspect him.

elysive: Not unless you are under an obligation to talk to the police, as with someone under supervision of probation or parole. Protection agaisnt self-incrimination still applies. nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances. - Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice?

Not unless you are under an obligation to talk to the police, as with someone under supervision of probation or parole. Protection agaisnt self-incrimination still applies.

And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.

No.

mattharvest:nekom: I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

I'd recommend you read this opinion, as it specifically addresses this concern. In short, they explain that (a) this fact has been true at least since the 50s if not the 20s, based on existing case law; (b) the express invocation requirement facilitates the need for the Court (and State) to be aware of the defendant's intent to invoke the Fifth at trial so it can be dealt with. Bear in mind that you cannot invoke the Fifth unless, in fact, it would incriminate you. In other words, it must be verifiable to a certain degree. This prevents, e.g., a witness from refusing to testify just to protect a friend while falsely hiding behind the Fifth (e.g. where you know your friend committed a crime but don't want to admit it).

Here, at length, is their reply:

"That requirement ensures that the Government is put on notice when a witness intends to rely on the privilege so that it may either argue that the testimony sought could not be self-incriminating, see Hoffman v. United States, 341 U. S. 479, 486 (1951), or cure any potential self-incrimination through a grant of immunity, see Kastigar v. United States, 406 U. S. 441, 448 (1972). The express invocation requirement also gives courts tasked with evaluating a Fifth Amendment claim a contemporaneous record establishing the witness' reasons for refusing to answer. See Roberts v. United States, 445 U. S. 552, 560, n. 7 (1980) ("A witness may not employ the privilege to avoid giving testimony that he simply would prefer not to give"); Hutcheson v. United States, 369 U. S. 599, 610- 611 (1962) (declining to treat invocation of due process as proper assertion of the privilege). In these ways, insisting that witnesses expressly invoke the privilege "assures that the Government obtains all the information to which it is entitled." Garner, supra, at 658, n. 11."...

This. If there is any branch of reporting that is worse than that of science, it is law. Reporters (with rare exceptions) have not studied law and therefore quite often misrepresent the decisions of appeals courts.

Nabb1:elysive: nekom: mattharvest:The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!

The cops knew exactly what they were doing. I'm not sure why this guy chose to start talking in the first place.

The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

elysive:I suppose I understand the distinction, but I still disagree with the ruling. Either there as citizens we have the right to silence with the police and the right against self incrimination, or we dont. Fortunately, silence about a gun is a pretty shaky evidence of guilt in my book. Maybe the guy didnt commit the crime but he knew his weapon was used?

If the cops were competent enough to go and retrieve physical evidence, it seems this would have been a non-issue.

(a) We have the right to remain silent, but we can waive it. Here, he was talking with them for around an hour before he suddenly fell silent on this one question. It was extremely ambiguous why he was being silent, at best . The idea that he was invoking his Fifth Amendment right didn't appear until trial. There was nothing about his circumstances that rendered his waiver involuntary. In other words; no one is denying he had the right to remain silent, but rather arguing about the fact that he waived that right.

(b) It wasn't silence about a gun; it was silence about whether his gun would match the shells they did recover (on top of his vehicle matching the getaway car).

(c) The cops did retrieve physical evidence: the shell casings from the murder weapon. This fact is what made the suspect clam up, realizing his weapon was going to be tied to the crime.

elysive:Nabb1: elysive: nekom: mattharvest:The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

The takeaway from this is that it's best to simply never answer any questions under any circumstances, then you avoid any and all confusion in the first place.

Considering how ignorant the general population is, I suspect a lot of people don't know what the Fifth Amendment is, so I agree. However, I wouldnt want to get in the way of the police's ace evidence gathering!

The cops knew exactly what they were doing. I'm not sure why this guy chose to start talking in the first place.

The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

I got my feet wet in the courtroom defending indigent criminal defendants. The vast majority of criminals are, in fact, idiots. They, do, however, develop a remarkable knowledge of valid and invalid searches.

mattharvest:elysive: The guy in this case is an idiot...I suppose that if this ruling only affects idiots we should count ourselves lucky.

The smartest criminals don't get caught, I suppose.

There was a book I read a while back that claimed that criminology is misnamed, since the truly competent criminals don't get caught and the only ones available for study are the criminals who f*cked up. Hence, it should be called f*ckupology.

mattharvest:This case doesn't make new law, it just reiterates existing law.

Which is why you never answer a policeman's questions voluntarily. Even if they start innocent they may be trying to build a rapport and lead you into this situation where your sudden silence could be used against you.

"Can we ask you a few questions?""Sorry officer, no." Also, while we're on the subject of not trusting cops, and admission of evidence, if you ever answer the door and a cop is there, step outside and close the door behind you before talking to him or her.

vernonFL:"looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.

Yes, they are, but my two-year-old daughter could spot body language that obvious. "But Daddy, you bought cookies and hit them up there." I mean, how the hell does she know this stuff? Daddy needs to take his little girl to see the horseys down at the track some time.

vernonFL:"looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.

Hence the difference between the words "explicit" and "implicit". You'll note that explicit invocation is required, albeit not by any specific language, while implicitinvocation isn't sufficient. The entire discussion of the 'general rule' requested by the petitioner/convict was that he wanted implicit invocation to be allowed, but the Supreme Court explains that this is not only contrary to decades-old law, but absurd in and of itself with regards to practice.

mattharvest:A very good question; I suspect (though I cannot know) that it's something along the lines of "No one saw me do it, so if I cooperate they won't realize it was me. Lots of people have dark cars and shotguns".

I think this because he only clammed up when they talked about being able to - via forensics - tie a particular shotgun to particular shotgun shells. Not everyone is aware that this can be done. I think he thought he was in the clear if he didn't given them reason to suspect him.

I think this nails it. He wanted to look innocent by cooperating. He didn't shut up until he realized his cunning plan wasn't working.

Criminals will also talk to the cops because they want to find out what evidence the cops have against them.

CruiserTwelve:Criminals will also talk to the cops because they want to find out what evidence the cops have against them.

I have a statement from a case of mine from years ago where the defendant did just this. It was a simple theft case, but the suspect had gotten away. Cops ID'd him from a witness who turned up, and they basically only had the word of the witness combined with the general description by the victim (it was here in an area of Maryland where about 3/4ths of cases charged involve a black male of about 5'10" in dark clothes). The suspect literally did the cartoonish thing of asking about details he couldn't know. I'd have to go find it in my files, but I believe he said something along the lines of "Did they recover the DVDs" or something when the police had just talked about shoplifting.

vernonFL:"looked down at the floor, shuffled his feet, bit his bottom lip, clenched his hands in his lap, [and] began to tighten up."

If that is true, (and the cops could have just made that up) - the guy's body language spoke for him.

Police are trained to spot those "tells" in your behavior.

Yep, and to what extent should that be evidence to convict a person of murde, manslaughter, or whatever in a court of law?

mattharvest:elysive: I suppose I understand the distinction, but I still disagree with the ruling. Either there as citizens we have the right to silence with the police and the right against self incrimination, or we dont. Fortunately, silence about a gun is a pretty shaky evidence of guilt in my book. Maybe the guy didnt commit the crime but he knew his weapon was used?

If the cops were competent enough to go and retrieve physical evidence, it seems this would have been a non-issue.

(a) We have the right to remain silent, but we can waive it. Here, he was talking with them for around an hour before he suddenly fell silent on this one question. It was extremely ambiguous why he was being silent, at best . The idea that he was invoking his Fifth Amendment right didn't appear until trial. There was nothing about his circumstances that rendered his waiver involuntary. In other words; no one is denying he had the right to remain silent, but rather arguing about the fact that he waived that right.

(b) It wasn't silence about a gun; it was silence about whether his gun would match the shells they did recover (on top of his vehicle matching the getaway car).

(c) The cops did retrieve physical evidence: the shell casings from the murder weapon. This fact is what made the suspect clam up, realizing his weapon was going to be tied to the crime.

This is making my head hurt. If the cops did match his gun to the crime and they have physical evidence linking him to the crime, who cares if he freaked out and deuced his pants about the question? It's true as you suggest no one can mind read why exactly a person is silent at any moment. he should have pleaded the fifth as he was guilt of something but maybe he was having a stroke. It just seems like sloppy evidence in this case. I hate criminals...I'm even pro corporal punishment, but I think the police should have to work for convictions and its not uncommon for people to freak out and act weird around police.

My problems with the ruling include: 1) if a person can be convicted based on silent inference of physical evidence when physical forensicevidence could instead be obtained (if they couldnt actually match the weapon, why not?), 2) if this ruling is used to ask random people point blank if they commited crimes and then to prosecute them on the basis of their silence alone...who needs a full investigation...and 3) if the ruling is abused and used for fishing expeditions like asking about tax compliance while interviewing someone about their neighbor's suspicious behavior. I've already objected that a lot of people are so ignorant they dont know about the Fifth Amendment.

It just seems that anything that makes the police's job too easy (foregoing searches of hard evidence in favor of flimsy silent admissions of guilt), especially when it is against the spirit of the Fifth, seems unnecessary and bad.

nekom:mattharvest:The Court's conclusion, then, is that If he wasn't in custody, then he needed to invoke the Fifth to be protected by it. If you cannot dispute the previous two points, how can you dispute their conclusion?

I personally believe that declining to answer a question and answering no further questions should be taken as invoking the 5th. Just my personal opinion.

But what about adoptive admissions as an exception to hearsay under FRE 801(d)(2)? If you haven't yet been Mirandized and arguably aren't even under custody, then you're at liberty to respond, and depending on how the question is asked - or stated, rather - it may call for such a response. For example, the opinion says:But when asked whether his shotgun "would match the shellsrecovered at the scene of the murder," App. 17, petitionerdeclined to answer. Instead, petitioner "[l]ooked down at the floor, shuffled his feet, bit his bottom lip, cl[e]nched hishands in his lap, [and] began to tighten up." Id., at 18.

Note that the question isn't quoted - Alito adds the "asked whether" part. It could have been an implied question, such as:Cop: "You know we're on to you, right? We've got your DNA all over the scene. We've got fifteen witnesses including your mom and Jesus Christ himself swearing that they saw you. And I bet if we check that your shotgun would match the shells recovered at the scene of the murder."Suspect: "..." vs. Reasonable person: "Of course not."

Doesn't it seem that, in such a circumstance, the adoptive admission exception would apply and the Officer's statement could be used as an admission by the suspect that his shells would match the shotgun?

elysive:Yep, and to what extent should that be evidence to convict a person of murde, manslaughter, or whatever in a court of law?

I don't think body language should be limited at all for probable cause - of course the police will abuse it and say they saw something suspicious - but generally if something is in plain sight and obvious to even someone not trained in reading body language - it should be used.

elysive:My problems with the ruling include: 1) if a person can be convicted based on silent inference of physical evidence when physical forensicevidence could instead be obtained (if they couldnt actually match the weapon, why not?), 2) if this ruling is used to ask random people point blank if they commited crimes and then to prosecute them on the basis of their silence alone...who needs a full investigation...and 3) if the ruling is abused and used for fishing expeditions like asking about tax compliance while interviewing someone about their neighbor's suspicious behavior. I've already objected that a lot of people are so ignorant they dont know about the Fifth Amendment.

Your problem is that none of those are valid legal questions, frankly.

1. The State is under no obligation to get the evidence you want to prove guilt; if we have five paths to prove guilt, we can pick one and run with it. This is the standard CSI problem: if jurors expect every case to have every bit of possible evidence, it's an unreasonable standard. You wouldn't require that in anything else in your life, but you want to do it here? The question isn't "beyond all doubt", it's "beyond a reasonable doubt." Besides, your complaint misses the point entirely: even if he could have been convicted without the silence, that doesn't change whether or not it was legal to comment on it. The Court here - in reaffirming nearly a CENTURY of case law - just explains it again. If you have this problem with this decision, why didn't you have it with the last CENTURY of cases?

2. Your second fear - that random people will be questioned and then prosecuted - borders on farce. That wouldn't make any sense. It also wouldn't match the facts of this case, or the reasoning of the Court. This whole discussion is about the fact that he made all these statements voluntarily (and waived his Fifth Amendment rights voluntarily) by virtue of how he chose to speak to the police. Your scenario of a randomly interrogatory cop has nothing to do with it.

3. Your third fear, of ignorance of Miranda (which isn't even relevant to this case since no one was ever in custody), has been routinely dismissed by the Court for the last forty years or more. In a 74 decision (cited in this opinion, in fact), the Court remarked that anyone who watched TV (in 1974 even!) knew their Fifth Amendment right against self-incrimination. Ignorance of the law is no excuse, despite the whingey tone of this Above the Law article.

elysive:nekom: Any lawyer worth his salt will instruct his client in no uncertain terms to make no statement to the police under any circumstances. - Justice Robert Jackson

Could refusal to answer questions during an investigation be considered obstruction of justice? And with this new ruling could total silence without a plea of the fifth be used as evidence of total guilt of something.